Can an intervener/objector participate in s34 conciliation conference after the onsite consultation?

On 19 April 2018, judgment was delivered in M.H.Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 dismissing a motion by Gundagai Community Environmental Impact Group (GCEIG), an objector to the subject class 1 proceedings seeking an order to be permitted to participate in the “closed door” part of the s 34 conciliation conference.

The Class 1 proceedings in question concerned an application made by the Applicant in relation to the decision of the Southern Joint Regional Planning Panel (JRPP) to refuse the Applicant’s development application for the expansion of an existing solid waste, non-putrescible, landfill at the subject land. The Respondent Council is the relevant public authority to defend the decision of the JRPP in this matter.

GCEIG, a not-for-profit, ‘grass roots’ community based group, established to protect and enhance the environment, social and economic wellbeing of the Gundagai and District GCEIG, filed a Notice of Motion in the proceedings, seeking two primary orders:

Order 1 was consented to by both parties and the Court was asked to determine the following question with respect to Order 2.

Question

Whether intervener entitled to be heard under s 8.12 of the Environmental Planning and Assessment Act 1979 may participate in the stage two process of the s 34 conciliation conference after the stage one onsite consultation?

Submissions

The respondent Council’s position remained neutral.

GCEIG’s submissions in support of the motion:

GCEIG did not wish to be joined as a party to the Class 1 proceedings but wished to be heard at the second stage of the s 34 conciliation because it was keen to assist Council uphold the decision of the JRPP.

GCEIG had concerns that the Council might not press the JRPP’s rejection of the Applicant’s proposal as vigilantly or as strongly as the GCEIG considered was necessary. GCEIG pressed for Order 2 as it would be “at the table” when the all-important discussions between the parties are occurring during stage two of the s 34.

GCEIG, by its representative submitted that given his extensive experience in environmental impact assessments and waste management, could assist in more robust and transparent decisions.

GCEIG also relied on the concept of natural justice and public faith.

The Applicant firmly opposed Order 2 for the following reasons:

There was no legal basis by which Order 2 could be made.

Neither s 8.12 of the EP&A Act or an order under s 38(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) conferred on an intervener ‘party’ status, and thus they were not entitled to attend stage two of the s 34 conference, which was expressly between parties.

Even if GCEIG could participate in stage two, its submissions would have to be by way of lay submission. Even if the representative of GCEIG had the requisite expertise, he could not be considered to have the requisite independence.

There was no evidence to support the proposition that Council would do anything other than appropriately defend the matter.

Should GCEIG seek to be joined as a party to the proceedings, it would not satisfy the requirements to be so joined.

Court’s consideration

The Court noted a number of pathways in which a non-party to proceedings could be heard:

an order made under s 8.12 of the EP&A Act

being joined as a party to the proceedings under s 8.15 of the EP&A Act

The court confirmed that any Double Bay Marina order is only available for stage one of the s 34 but not for stage two.

As evident from the court’s Conciliation Conference Policy, following the site inspection and on-site oral submissions, the parties undertake confidential conciliation discussions facilitated by the Commissioner. Crucially, in this instance, participation in those discussions is limited to the parties (including their legal representatives and experts).

Section 34 of the LEC Act was clear that only parties could be “in the room” at stage two of the s 34 conference. Therefore where GCEIG had made it clear that it was not seeking to be joined as a party to the proceedings, then whatever orders made by the court it was to remain a non-party. Therefore the Court could not allow GCEIG to be participants “within the room” at the s 34.

From the statutory analysis of s 34 of the LEC Act, in the context of its legislative history and the multiplicity of case law, the Court found that a non-party could not participate in stage two of the s 34 conference.

But the Court was satisfied that as a person expert in relevant fields, the representative of GCEIG had the capacity to make submissions in a focussed, expert manner which could assist the Court.

Judgment

Accordingly, the Court dismissed GCEIG’s motion seeking permission for it, as a non-party, to participate behind the “closed door” of the s 34 conciliation conference but made an order enabling GCEIG to make such submissions, supported by such expert evidence, as it deemed appropriate as part of the on-site consultation exercise conducted prior to the formal s 34 conference, with sufficient time allocated to facilitate the GCEIG contribution to the deliberations of the Court.

Implications for Council

It is now clear that non-party to proceedings cannot formally participate in the confidential stage two of a s34 conference.

This having said, the Court noted some practical options available to allow an intervener to be a participant in the confidential stage two of s 34:

By the parties’ own volition agreeing for the intervener to be involved.

The respondent Council recognising the particular value – perhaps specific expertise – of the intervener’s participation, opts to recognise that expertise by adding the intervener’s representative to the Council’s team attending the s 34. This is a matter for the Council.

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